Facts

Facts and procedural history:

In 2020, the testatrix E.A. died, leaving behind four children (B.A., C.A., D.A. and A.A.) as statutory heirs. The testatrix’s husband had already passed away in 1989. A dispute arose among the siblings regarding the regulation of the estate.

On 25 January 2022, the District Court of Höfe issued a writ of summons pursuant to Art. 209 para. 2 CPC to the plaintiff A.A., which was served on him on 26 January 2022. Relying on this writ of summons, A.A. filed a claim regarding partition of the estate and reduction against his siblings with the District Court of Höfe on 12 May 2022. By order of 9 February 2023, the District Court declined to enter the claim due to the lack of a valid writ of summons (because the deadline had been missed).

A.A. appealed this decision not to enter the claim to the Court of Appeal of the Canton of Schwyz, which confirmed the decision and dismissed the appeal by decision of 17 August 2023. A.A. filed an appeal in civil matters with the Federal Supreme Court on 18 September 2023. He requested that the contested decision be set aside and the matter be referred back to the court of first instance for a new assessment.

The respondents B.A. and C.A. waived the submission of a statement of defence. D.A. did not comment. The Higher Court of the Canton of Schwyz submitted a statement of defence on 13 May 2024, waiving the submission of an application.

The Federal Supreme Court allowed the appeal to the extent that it entered into the matter.

Considerations

Legal classification of the calculation of deadlines:

The central legal question concerns the calculation of the prosecution deadline under Art. 209 para. 3 CPC, which is three months after service of a writ of summons. The appellant A.A. filed the claim on 12 May 2022, after the writ of summons had been served on 26 January 2022. The lower court calculated the end of the deadline by applying the European Convention on the Calculation of Time-Limits (EUTC) and Art. 142 para. 2 CPC to 11 May 2022, so that the claim was considered late. The appellant argued that the deadline should only have begun to run on 27 January 2022 pursuant to Art. 142 paras. 1 and 2 CPC and should therefore have ended on 26 April 2022, meaning that the claim had been filed in a timely manner.

Applicability of the European Convention on the Calculation of Time-Limits:

The Federal Supreme Court confirms that the EUTC applies to the calculation of the deadline under Art. 209 para. 3 CPC, as it concerns a procedural deadline triggered by a notification (service of the writ of summons). The Convention governs the calculation of deadlines expressed in days, weeks, months CO years and stipulates that the dies a quo (starting day of the deadline) coincides with the day of the event triggering the deadline. The dies ad quem (end day of the deadline) is determined according to the rules set out in Art. 4 EUTC. For monthly deadlines, the deadline ends on the day of the last month that bears the same number as the day of the event triggering the deadline. If there is no corresponding day, the deadline ends on the last day of the month.

Interpretation of Art. 142 CPC:

The Federal Supreme Court examines whether Art. 142 CPC is in conflict with the EUTC. Art. 142 para. 1 CPC stipulates that deadlines triggered by a notification CO an event begin to run on the following day. Art. 142 para. 2 CPC governs the calculation of monthly deadlines and stipulates that they end on the day of the last month that bears the same number as the day on which the deadline began to run. The interpretation of these provisions is controversial:

  • Majority opinion: Arts. 142 paras. 1 and 2 CPC are to be applied in combination. The day on which the deadline begins to run is the day after the event triggering the deadline. This results in an additional day being available for monthly deadlines, as the deadline only begins to run on the following day and ends on the day with the same number in the last month.
  • Minority opinion: Art. 142 para. 2 CPC is to be applied in isolation. The day on which the deadline begins to run is the day of the event triggering the deadline. This corresponds to the regulation in the EUTC and…